During former President Donald Trump's speech to a crowd of supporters at his New Jersey golf club Tuesday night, just hours after his arraignment on 37 federal charges relating to his handling of classified documents and alleged obstruction, he doubled down on his defense.

“Whatever documents a president decides to take with him, he has the right to do so. It’s an absolute right," Trump said, claiming the right is granted to him by the Presidential Records Act.

The Presidential Records Act makes clear once a president leaves office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President."

John P. Fishwick, Jr., a former U.S. attorney for the Western District of Virginia said the documents found in Trump's possession – which the indictment said included information about defense and weapons capabilities of the U.S. and its allies, U.S. nuclear programs, potential vulnerabilities of the U.S. and its allies to military attack, and plans for retaliation against a foreign attack – fell under the umbrella of presidential records, not personal records.

I think that’s gonna be a real uphill challenge for the Trump legal team," Fishwick said. “I think the Presidential Records Act is designed you know, if I’ve got some personal papers, some notes, if I’ve got newspaper clippings, those are mine, those are my personal papers but everything else, if it’s closed it’s always gonna be viewed as an official record. It’s gonna be viewed as the government’s. It’s the people’s house.

The law also requires the president and their staff to take all practical steps to separate personal records from presidential records.

During his speech Tuesday, Trump said that's something he did not complete.

“I hadn’t had a chance to go through all the boxes. It’s a long, tedious job, takes a long time, which I was prepared to do but I have a very busy life," Trump said.

Fishwick said he's sure Trump's attorneys flinched at that comment and others about specific documents the FBI recovered from Mar-a-Lago.

That comment last night has the potential for the prosecutors to say, well that’s inconsistent with what you did. In other words, you had gone through these documents and in fact, you refused to return them to us and you tried to hide them from us," Fishwick said.

Trump's defense also rides on accusations of political bias against him from the Department of Justice. Since news of his indictment, attacks coming from Trump and his allies have honed specifically in on Special Counsel Jack Smith and prosecutors on his team.

Fishwick called Smith a "bulldog" with "a reputation of following the facts" but said it's fair game for anyone to examine the records of those working on the case.

In a letter to Attorney General Merrick Garland, Rep. Matt Gaetz, R-Fla., asked him to provide information on all employees hired or detailed to Smith's office, any communication Garland may have had with Smith's office, and other communication records.

Gaetz points to one of Smith's prosecutors Karen Gilbert, who has contributed to Democratic causes including President Joe Biden's 2020 campaign while employed by the Department of Justice, according to the Federal Election Commission's database.

My advice for anybody who works at DOJ or any judge out there, is don’t make any political contributions, period, while you have those jobs," Fishwick said.

When asked by reporters on Wednesday about accusations of bias in his department, Garland defended Smith and his team.

Mr. Smith is a veteran career prosecutor," Garland said. "He has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law. Any questions about this matter will have to be answered by their filings in court.

On the other side of the political spectrum there are also concerns of political bias tainting the outcome with Judge Aileen Cannon, a Trump appointee, assigned to preside over the case.